Citation Nr: 1705539
Decision Date: 02/23/17 Archive Date: 02/28/17
DOCKET NO. 08-19 288 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUE
Entitlement to service connection for a disability manifested by joint pain, to include as due to exposure to ionizing radiation, alternatively claimed as an undiagnosed illness.
REPRESENTATION
The Veteran is represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Sean G. Pflugner, Counsel
INTRODUCTION
The Veteran served on active duty from September 1979 to April 1991 and from October 1992 to January 1993.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was before the Board in August 2011, at which time it was remanded for additional development. After the issuance of an August 2016 supplemental statement of the case, this appeal was remitted to the Board for further appellate review.
This appeal is remanded to the RO via the Appeals Management Office (AMO) in Washington, DC.
REMAND
Pursuant to the August 2011 remand, the Veteran underwent a VA examination in June 2015 regarding his claimed back disability. The examiner provided contradicting information regarding the presence and nature of a back disability. Specifically, the examiner determined that there was no diagnosis because, "although the [Veteran] has symptoms there is no objective documented medical evidence of pathology." Despite this, the examiner then rendered an opinion that the Veteran's "slight" thoracic spine scoliosis was less likely than not incurred in or caused by his military service, to include as due to exposure to ionizing radiation. Thus, the examiner indicated that a back disability was present and not present.
Additionally, the examiner opined as follows:
An undiagnosed illness is a condition that in spite of a complete workup of symptoms, the condition remains without a diagnosis. The back pain symptoms do not comprise an undiagnosed illness because the Veteran has not had a complete workup to rule out diagnosable illnesses.
The examiner suggests that there are additional tests that the Veteran could undergo to ascertain the presence and nature of a diagnosable disability, but that such testing has not been administered.
Based on the above, the Board finds that the June 2015 VA examinations and opinions are inadequate and the evidence of record is otherwise insufficient for purposes of adjudicating the Veteran's claim. Consequently, the Board finds a remand is required in order to provide the Veteran another VA examination. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the evidence of record contains insufficient information for evaluation purposes).
Accordingly, the case is REMANDED for the following action:
1. The AMO must contact the June 2015 VA examiner, or an appropriate substitute, in order to ascertain what constitutes a "full workup" in the Veteran's case. Any created documentation associated with this request must be associated with the claims file.
2. The AMO must then provide the Veteran with a VA examination. All pertinent evidence of record must be made available to and reviewed by the examiner. All necessary and appropriate tests must be performed and their results documented. This testing must be considered a "full workup," as described by the response received from Paragraph 1.
After examining the Veteran and reviewing his pertinent history, the examiner must determine whether a diagnosable back and/or neck disability is present. If so, the examiner should then state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any such back and/or neck disability was incurred in or due to his active duty, to include as due to exposure to ionizing radiation.
If the examiner determines that no diagnosable back or neck disability is present, the examiner is ask to provide an opinion as to whether the Veteran's symptoms represent an undiagnosed illness. If so, the examiner should then provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's undiagnosed illness was incurred in or due to his service in the Southwest Asia Theater of operations (Operation Desert Storm/Desert Shield).
The rationale for all opinions expressed must be provided.
3. The AMO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to the Veteran's last known address. Documentation must also be obtained and associated with the Veteran's claims file that indicates whether any notice that was sent was received or returned as undeliverable.
4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be re-adjudicated. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2016), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).